ORDER granting Defendants' Motion to Dismiss; Plaintiffs'

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Case 1:06-cv-22253-CMA Document 98 Entered on FLSD Docket 07/30/2007 Page 22 of 26 22 Case No. 06-22253-CIV-ALTONAGA/Turnoff New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1352 (D.C. Cir. 2000) (where court permitted jurisdictional discovery although it could not “tell whether jurisdictional discovery will help to sort out” the jurisdictional issues in the case)). In contrast, the Second and Seventh Circuits require that a plaintiff first establish a prima facie case of jurisdiction over the defendant before the plaintiff is entitled to jurisdictional discovery. See Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 185-86 (2d Cir. 1998) (district court did not err in denying jurisdictional discovery where plaintiffs did not establish a prima facie showing of jurisdiction over a foreign corporation); Central States, Southeast and Southwest Areas Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946-47 (7th Cir. 2000) (district court did not abuse discretion in denying jurisdictional discovery where evidence was insufficient to show a colorable basis for jurisdiction). Two reported decisions of the Eleventh Circuit address the issue of jurisdictional discovery, with varying outcomes based primarily on the records presented in each case. In Eaton, the court found that the trial court’s dismissal of a complaint for lack of subject matter jurisdiction under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720, before jurisdictional discovery was taken, was premature. See 692 F.2d at 730-31. At the time of the dismissal, plaintiff had served subpoenas duces tecum on the defendant and another entity plaintiffs maintained the defendant had acted in concert with, see id. at 728-29, in an effort to show the two companies had engaged in a “common promotional plan” under section 1701(4), see id. at 731. The trial court dismissed the suit for lack of subject matter jurisdiction less than one week before the discovery would have been received, and after plaintiffs had asked the court to reserve ruling on the question of jurisdiction until they could obtain the discovery to develop additional jurisdictional facts. See id. at 729.
Case 1:06-cv-22253-CMA Document 98 Entered on FLSD Docket 07/30/2007 Page 23 of 26 23 Case No. 06-22253-CIV-ALTONAGA/Turnoff In reversing the trial court, the court in Eaton first acknowledged that jurisdictional discovery is “not entirely discretionary.” Id. The Eleventh Circuit also reviewed decisions of the Fifth Circuit, which reinforced the conclusion that a qualified right to jurisdictional discovery exists. See id. at 730 (citing Blanco v. Carigulf Lines, 632 F.2d 656 (5th Cir. 1980) (reversal where answers to interrogatories were overdue at time of dismissal); Chatham Condo. Ass’ns v. Century Village, Inc., 597 F.2d 1002, 1012 (5th Cir. 1979) (“‘dismissal for lack of subject matter jurisdiction . . . prior to giving the plaintiff ample opportunity for discovery, should be granted sparingly’”); Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.), cert. denied, 454 U.S. 897 (1981) (prior to Rule 12(b)(1) dismissal where jurisdictional facts are in dispute, court must give the plaintiff opportunity to discover facts necessary to establish jurisdiction)). Thus, the Eaton court reversed with instructions that plaintiff be given an opportunity to develop facts to support a finding of jurisdiction. See id. at 731. In Posner, the Eleventh Circuit considered the correctness of the trial court’s order dismissing a case for lack of personal jurisdiction or international abstention. See 178 F.3d 1209. The defendant in Posner challenged plaintiffs’ jurisdictional allegations with an affidavit from one of its officers, and plaintiffs did not produce any evidence to contradict it. See id. at 1214. In a footnote, the Eleventh Circuit disposed of the jurisdictional discovery issue as follows: Plaintiffs claim a right to jurisdictional discovery. Although Plaintiffs correctly cite precedent from this court, . . . in support of a qualified right to conduct jurisdictional discovery, those cases are distinguishable. In Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 729-31 (11th Cir. 1982) . . . the plaintiffs had served interrogatories . . . before the motion to dismiss was ruled on: discovery was already under way. Here, no discovery efforts were made in the eight months between the time Plaintiffs filed the complaint and the time it was dismissed . . . . Plaintiffs’ only allusion to jurisdictional discovery was on the first page of their memorandum in opposition to the motion to dismiss filed seven and one-half months after the complaint and more than five months after the filing of the motion to dismiss; even then, Plaintiffs failed
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ORDER granting Defendants' Motion to Dismiss; Plaintiffs'

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